Summary
In Sikorski v Springbrook Fire Dist. of Town of Elma (225 AD2d 1041), we held that "[a] vicariously liable party may obtain common-law [and contractual] indemnification from a contractor where the party did not control, direct, or supervise the injury-producing work" (emphasis added).
Summary of this case from Syracuse University v. Games 2002, LLCOpinion
March 8, 1996
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Denman, P.J., Green, Wesley, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting plaintiff's motion for partial summary judgment against defendant F.J. Wailand Associates, Inc. (Wailand) pursuant to Labor Law § 240 (1) and in denying Wailand's cross motion for summary judgment dismissing that cause of action against it. Under its contract with defendant Springbrook Fire District of the Town of Elma (Springbrook), Wailand was to make certain that the project was built in accordance with the plans and specifications. There is no evidence that Wailand had the authority to supervise, direct, or control the injury-producing work, and thus it is not liable as Springbrook's agent ( see, Russin v Picciano Son, 54 N.Y.2d 311; Kerr v Rochester Gas Elec. Corp., 113 A.D.2d 412; Kenny v Fuller Co., 87 A.D.2d 183, lv denied 58 N.Y.2d 603).
The court properly determined that Springbrook and Wailand are entitled to a conditional judgment against Sahlem Roofing and Siding, Inc. (Sahlem) for common-law indemnification. A vicariously liable party may obtain common-law indemnification from a contractor where the party did not control, direct, or supervise the injury-producing work and the contractor controlled and directed the performance of the plaintiff's work ( see, Stimson v Lapp Insulator Co., 186 A.D.2d 1052). There is no proof that Springbrook or Wailand controlled or supervised the roofing work performed by Sahlem. Additionally, the court properly determined that Springbrook and Wailand are entitled to a conditional judgment against Sahlem for contractual indemnification based on section 4.6.1 of the contract ( see, Gillmore v Duke/Fluor Daniel, 221 A.D.2d 938)